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Governance Concerns: Chhattisgarh challenges NIA Act

Chhattisgarh challenges NIA Act

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Chhattisgarh challenges NIA Act
Chhattisgarh challenges NIA Act

In News: (Chhattisgarh challenges NIA Act)

  • The Chhattisgarh government has petitioned the Supreme Court to declare the National Investigating Agency Act, 2008 as unconstitutional.
  • The plaint was moved under Article 131 of the Constitution, which gives the Supreme Court exclusive jurisdiction to hear cases between states and the Centre.

Background:

  • In the wake of 26/11 Mumbai terror attack of 2008, National Investigating Agency Act 2008 was passed in Parliament with very little opposition.
  • The Act makes the National Investigation Agency the only truly federal agency in the country, along the lines of the FBI in the United States, more powerful than the CBI.
  • In 2019 the government further broadened the NIA’s powers by passing the National Investigation Agency (Amendment) Bill, 2019.

News Summary:

  • The petition have been filed under Article 131 of the Constitution, which empowers the Supreme Court to decide disputes between the Centre and the states and those between states.

Chhattisgarh arguments:

  • The police was under the state list and Parliament was not competent to pass a law like the NIA Act.
  • NIA Act took away the state’s powers to investigate crimes. There are no rules governing the exercise of Centre’s powers under the Act, making the law arbitrary.
  • As the law does not provide scope for obtaining consent of the state government before operating in its jurisdiction, it violates the federal principle enshrined in the Constitution.

NOTE: Chhattisgarh’s plaint challenges the entire NIA Act and not just the amendments moved in 2019.

What is Article 131 of the Constitution?

  • Article 131 gives the SC the original jurisdiction to decide suits relating to Centre-state and state-state disputes.
  • Whenever a State feels that its legal rights are under threat or have been violated, it can take the “dispute” to the Supreme Court.
NOTE: The "original jurisdiction" of a court means the power to hear a case for the first time, as opposed to appellate jurisdiction, in which the court reviews the decision of a lower court.
  • The jurisdiction in Article 131 is also “exclusive”, meaning it is only the Supreme Court which has this authority(i.e. no lower courts have authority in deciding upon issues of centre-state and state-state disputes).
NOTE: The original jurisdiction under Article 32 (which gives the top court the power to issue writs, etc.) is not exclusive because under Article 226, the High Courts too have the power to issue writs, directions etc.

What was the controversy around the NIA Act in 2008?

  • The primary criticism against the law was that it violated the sovereignty of the state governments in the subject of policing.
  • Since police is in the state list, however, by passing the NIA Act, the Centre expanded its jurisdiction to investigating crimes even though the concept of a federal crime does not exist in India.
  • Under the law, the NIA could take over cases if they fall under the offences mentioned in the Schedule of the Act.
  • There was no need for the Centre to seek the permission of the state governments as the law empowers the Centre to investigate the scheduled offences suo motu.

National Investigation Agency (Amendment) Act, 2019 – changes in the NIA’s powers:

  • The 2019 amendment in the law focused on three main areas:
Offences Outside India:
  • The original Act allowed NIA to investigate and prosecute offences within India. The amended Act empowered the agency to investigate offences committed outside India, subject to international treaties and domestic laws of other countries.
  • The NIA special court in New Delhi will have jurisdiction over these cases.
Widened Scope Of Law:
  • The NIA can investigate and prosecute offences under the Acts specified in the Schedule of the NIA Act.
  • The Schedule originally had The Atomic Energy Act, 1962, The Unlawful Activities (Prevention) Act, 1967, and The Anti-Hijacking Act, 1982, among other entries.

What are the matters where the original jurisdiction of the Supreme Court is provisioned?

  • Any dispute involving a question of law or fact on which existence of legal right depends comes under original jurisdiction of the SC. The disputes may be:
    1. between the government of India and one or more states;
    2. between the government of India and any state/states on one side and one or more states on the other;
    3. between two or more states.

Bar on the original jurisdiction of the Supreme Court:

  • The Supreme Court does not extend to:
    1. A dispute arising out of any treaty, agreement, covenant, engagement or other similar instrument executed before the commencement of the constitution and continues to be in operation or which provides that the jurisdiction of the Supreme Court shall not extend to such a dispute;
    2. The parliament may exclude the jurisdiction of the Supreme Court in disputes relating to the use, distribution, or control of the water of any inter-state river;
    3. Suits brought by private individuals against the government of India.

About: NIA

  • The National Investigation Agency (NIA) is a central agency, which was formed in 2009 in the wake of the 26/11 Mumbai terror attack of 2008.
  • The agency functions as the Central Counter-Terrorism Law Enforcement Agency in India.
  • Thus, it brought under the agency’s ambit offenses under Atomic Energy Act, Unlawful Activities Prevention Act, Anti-Hijacking Act, Suppression of Unlawful Acts against Safety of Civil Aviation Act, SAARC Convention (Suppression of Terrorism) Act, Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, Weapons of Mass Destruction and their Delivery Systems (Prohibition of Unlawful Activities) Act and several sections under the Indian Penal Code.

About: NIA Act

  • The NIA Act, 2008, provides for a national-level agency (NIA) to investigate and prosecute offences listed in a schedule (scheduled offences).
  • It gives the NIA powers to take suo motu cognisance of terror activities in any part of India and register a case, to enter any state without permission from the state government, and to investigate and arrest people.
  • Further, the Act allows for creation of Special Courts for the trial of scheduled offences.
  • The Act makes NIA the only truly federal agency in the country, along the lines of the FBI in the United States, and more powerful than the CBI.
  • The amendment has allowed the NIA to investigate, in addition, cases related to:
    1. Human trafficking,
    2. Counterfeit currency or banknotes,
    3. Manufacture or sale of prohibited arms,
    4. Cyber-terrorism,
    5. Offences under the Explosive Substances Act, 1908.

Special Courts:

  • The 2008 Act constituted Special Courts for conducting the trial of offences under the Act.
  • The 2019 amendment allowed the central government to designate Sessions Courts as Special Courts for the trial of scheduled offences under the Act.
  • The central government is required to consult the Chief Justice of the High Court under which the Sessions Court is functioning, before designating it as a Special Court.
  • When more than one Special Court has been designated for any area, the seniormost judge will distribute cases among the courts.
  • State governments too, may also designate Sessions Courts as Special Courts for the trial of scheduled offences.

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